On Neutral and Preferred Principles of Constitutional Law
57 Pages Posted: 13 Jun 2014
Date Written: June 11, 2014
In his famous and controversial article Towards Neutral Principles of Constitutional Law Professor Herbert Wechsler addressed the legitimacy of judicial review and the standards to be followed in interpretation, and declared that courts must issue principled decisions resting on reasons “that in their generality and their neutrality transcend any immediate result that is involved.” Focusing on the United States Supreme Court’s seminal Brown v. Board of Education decision, Wechsler argued that the Court’s ruling was not a principled decision meeting his standard of neutrality. This article examines Neutral Principles and Wechsler’s critique of Brown. More specifically, the article (1) argues that the “neutral principle” concept is indeterminate and oxymoronic, (2) focuses on and responds to Wechsler’s position that there was a point in Plessy v. Ferguson’s observation that if state-mandated separation of the races stamped African Americans with a “badge of inferiority” it was “solely because the colored race chooses to put that construction upon it”; and (3) demonstrates that Wechsler preferred, not a neutral principle applicable to racial discrimination claims, but a non-neutral freedom-of-association principle (an innovation of the Civil War period) that ignored the asymmetrical meaning of segregation and the differences between inclusion and exclusion and served as a justification for the segregationist status quo. In addition, the article submits that Wechsler’s neutral principles approach and critique of Brown has contemporary relevance and importance, as illustrated by certain aspects of the Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1.
Keywords: Constitution, Fourteenth Amendment, Equal protection, Brown, Plessy, Parents Involved, judicial interpretation, judicial review, neutrality, principles, Wechsler
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